Denver Journal of International Law & Policy Denver Journal of International Law & Policy

Volume 30 Number 4 Summer/Fall Article 7

January 2002

Return to Lockerbie and the Montreal Convention in the Wake of Return to Lockerbie and the Montreal Convention in the Wake of

the September 11th Terrorist Attacks: Ramifications of Past the September 11th Terrorist Attacks: Ramifications of Past

Security Council and International Court of Justice Action Security Council and International Court of Justice Action

Jonathan Frank

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Recommended Citation Recommended Citation Jonathan Frank, Return to Lockerbie and the Montreal Convention in the Wake of the September 11th Terrorist Attacks: Ramifications of Past Security Council and International Court of Justice Action, 30 Denv. J. Int'l L. & Pol'y 532 (2002).

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A RETURN TO LOCKERBIE AND THEMONTREAL CONVENTION IN THE WAKE OF

THE SEPTEMBER 11TH TERRORIST ATTACKS:

RAMIFICATIONS OF PAST SECURITY COUNCIL AND

INTERNATIONAL COURT OF JUSTICE ACTION

Jonathan A. Frank*

I. INTRODUCTION

Nearly thirteen years after the bombing of Pan Am Flight 103 over Lockerbie,Scotland in December, 1988,' the international community again faces thechallenge of confronting the international legal ramifications surrounding theextradition and prosecution of alleged international state-sponsored terrorists. Ashas been explored in a number of previous works on the subject, United NationsSecurity Council actions in response to the Lockerbie bombing created significanttension between the Security Council and the International Court of Justice("ICJ"). 2 These tension-producing actions were a response to Libya's attemptedinvocation of various articles of the Convention for the Suppression of UnlawfulActs Against the Safety of Civil Aviation, otherwise known as the MontrealConvention of 1971.3

* Juris Doctor expected May 2003, University of Denver College of Law. A.M. (Latin American

Studies) Stanford University, 1998. B.A. Carleton College (Spanish Literature, Latin American StudiesConcentration).

1. See generally Lockerbie Trial Briefing Site, available at http://www.ltb.org.uk/ (last visitedMarch 15, 2002) (a site maintained by the University of Glasgow which provides a number of linksrelated to the Lockerbie bombing as well as news and official documentation regarding the subsequenttrial process).

2. See generally Omer Y. Elagab, The Hague as the Seat of the Lockerbie Trial: SomeConstraints, 34 INT'L LAW. 289, 298 (2000); Gerald P. McGinley, The IC.J "s Decision in theLockerbie Cases, 22 GA. J. INT'L & COMP. L. 577 (1992); Vera Gowlland-Debbas, The RelationshipBetween the International Court of Justice and the Security Council in the Light of the Lockerbie Case,88 AM. J. INT'L. L. 643 (1994); Deborah D'Angelo, The "Check" on International Peace and SecurityMaintenance: The International Court of Justice and Judicial Reeview of Security Council Resolutions,23 SUFFOLK TRANSNAT'L L. REV. 561 (2000); Eric Zubel, The Lockerbie Controversy: TensionBetween the International Court of Justice and the Security Council, 5 ANN. SURV. INT'L. & COMP. L.259 (1999).

3. See Convention for the Suppression of Acts Against the Safety of Civil Aviation (Sabotage),Sept. 23, 1971, 24 U.S.T. 565 [hereinafter Montreal Convention]. See generally http://www.undcp.org/

2002 A RETURN TO LOCKERBIE AND THE MONTREAL CONVENTION 533

Generally speaking, Libya's claims were grounded in the MontrealConvention's prescription for extradition processes of individuals accused ofcommitting acts of aviation-related terrorism, 4 as well as for adjudication in the ICJin the case of disputes between party states arising from the Montreal Convention.5

The Security Council invoked its Chapter VII powers of the United NationsCharter at the same time as Libya instituted proceedings in the ICJ with respect tothe above and in reference to disputes with the United Kingdom and the UnitedStates.6 Implemented at the urging of the United Kingdom and the United States,Security Council Resolutions 748 (1992), 883 (1993) and their progeny, built uponResolution 731 (1992) and effectively bound Libya to Resolutions 748 and 883'sterm. These resolutions had the effect of rendering any ruling of the InternationalCourt of Justice and any further Libyan action subject to the mandates of theSecurity Council.

7

terrorism.html (last visited Apr. 2, 2002); http://www.asil.org/resource/crimi.htm#Terrorism (lastvisited Apr. 4, 2002); http://jurist.law.pitt.edu/terrorismrterrorism3a.htm (providing links to generalUnited Nations materials on terrorism, in addition to international treaties, United Nations GeneralAssembly and Security Council Resolutions, including the text of the twelve United Nations treaties onthe prevention of terrorism: the Convention on Offences and Certain Other Acts Committed On BoardAircraft ("Tokyo Convention", 1963); the Convention for the Suppression of Unlawful Seizure ofAircraft ("Hague Convention", 1970); the Convention for the Suppression of Unlawful Acts Against theSafety of Civil Aviation ("Montreal Convention", 1971); the Convention on the Prevention andPunishment of Crimes Against Internationally Protected Persons (1973); the International ConventionAgainst the Taking of Hostages ("Hostages Convention", 1979); the Convention on the PhysicalProtection of Nuclear Material ("Nuclear Materials Convention", 1980); the Protocol for theSuppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation,supplementary to the Convention for the Suppression of Unlawful Acts Against the Safety of CivilAviation (1988); the Convention for the Suppression of Unlawful Acts Against the Safety of MaritimeNavigation (1988); the Protocol for the Suppression of Unlawful Acts Against Fixed Platforms Locatedon the Continental Shelf (1988); Convention on the Marking of Plastic Explosives for the Purpose ofDetection (1991); the International Convention for the Suppression of Terrorist Bombing (UnitedNations General Assembly Resolution, 1997); the International Convention for the Suppression of theFinancing of Terrorism (1999)).

4. "It is noteworthy that in Libya's opinion the Montreal Convention applied to 'state' as well as'ordinary' terrorism." NINA B. JORGENSEN, THE RESPONSIBILITY OF STATES FOR INTERNATIONAL

CRIMES 251 (2000).5. See Montreal Convention, supra note 3, arts. 8 and 9.6. See id. at art. 14. See also U.N. CHARTER arts. 39-51, available at http://www.un.org/

aboutun/charter/chapter7.htm (last visited March 25, 2002). Article 39 of Chapter VII of the U.N.Charter reads: "The Security Council shall determine the existence of any threat to the peace, breach ofthe peace, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain orrestore international peace and security." For a comprehensive study of the United Nations SecurityCouncil Chapter VII powers, see DANESH SAROOSHI, THE UNITED NATIONS AND THE DEVELOPMENT

OF COLLECTIVE SECURITY (1999).7. See JORGENSEN, supra note 4, at 251. See also Peter H.F. Bekker, Questions ofInterpretation

and Application of the 1971 Montreal Convention Arising From the Aerial Incidents at Lockerbie(Libyan Arab Jamahiriya v. United Kingdom) and (Libyan Arab Jamahirya v. United States),Preliminary Objections, Judgments, 92 AM. J. INT'L. L. 503, 506 (1998) (stating that the InternationalCourt of Justice, by majority, declared that Libya's claim within the Court was rendered "withoutobject," and therefore moot, in light of Security Council Resolutions 748 and 883); DAngelo, supranote 2, at 586 (citing to Questions of Interpretation and Application of the 1971 Montreal ConventionArising From the Aerial Incident at Lockerbie ( Libya v. U.S.), 1992 I.C.J. 114 (Apr. 14), at 145, 180

DENV. J. INT'L L. & POL'Y

This paper will attempt to elucidate upon the United Nations role with respectto international action taken in response to the tragic terrorist attacks upon theUnited States on September 11 th. Furthermore, this paper will attempt to providesome insight regarding the question of whether states complicit in acts ofinternational terrorism should have the opportunity to rely on internationalconventions as a course of responsive action in the international legal arena; priorto Security Council or unilateral State political action initiated under the SecurityCouncil's Chapter VII authority.8

II. LOCKERBIE: A BRIEF HISTORY OF UNITED NATIONS INVOLVEMENT

In the aftermath of the Lockerbie bombing, the United Nations played asignificant role in facilitating the extradition of the accused Libyan terrorists fortrial in a neutral state at the behest of the United States and the United Kingdom. 9

During the nearly ten-year negotiation process leading up to the extradition of theaccused terrorists from Libya, the United Nations Security Council, by way ofResolutions 731, 748, 883 and 1192 (1998), acted aposteriori in a positive mannerwith regards to only Libya and not with regards to other states known to harbor,financially assist, or otherwise support terrorists.' 0 Rather, the Security Councildeferred to the United Nations Charter and General Assembly Resolutions 49/60(1995) and 51/210 (1997) in its comparatively inert or passive historical "urgings"to other member and non-member States."

(Bedjaoui, J., dissenting)) [hereinafter the Lockerbie case]; McGinley, supra note 2, at 578; Zubel,supra note 2, at 269.

8. Thank you to Dr. Omer Y. Elagab, whose paper "The Hague as the Seat of the LockerbieTrial: Some Constraints," provided me with both a departure point and a wealth of informative analysiswhich have proved key to the ideas behind the authoring of this article. The question to which I amreferring is put forth by Dr. Elagab as follows: "[t]he question to be addressed, however, is whetherthere are exceptional circumstances in which the option of prosecution should be denied to the state thatis complicitous in acts of terrorism." See Elagab, supra note 2, at 298. (Additionally, Dr. Elagab pointsout that this was an issue that counsel for both the United States and the United Kingdom broached intheir respective remarks in International Court of Justice Oral Hearings with regard to the LockerbieCase).

9. See S.C. Res. 1373, U.N. SCOR, U.N. Doc. S/Res/1373 (2001) available athttp://www.un.org/Docs/scres/2001/res1373e.pdf. See also U.N. SCOR, U.N. Doe SC17158, PressRelease, United Nations, Security Council Unanimously Adopts Wide-Ranging Anti-TerrorismResolution; Calls for Suppressing Financing, Improving International Cooperation (Sept. 28, 2001),available at http://www.un.org/News/Press/docs/2001/sc7158.doc.htm (last visited Mar. 1, 2002); S.C.Res. 731, U.N. SCOR, U.N. Doc. S/Res/731 (1992), available at http://www.un.org/documents/sc/res/1992/s92r731e.pdf (last visited Mar. 1, 2002); S.C. Res. 748, U.N. SCOR, U.N. Doc. S/Res/748(1992), available at http://www.un.org/documents/sc/res/1992/s92r748e.pdf (last visited Mar. I, 2002);S.C. Res. 883, U.N. SCOR, U.N. Doe. S/Res/883 (1993), available at http://www.un.org/docs/scres/1993/883e.pdf (last visited Mar. 1, 2002); S.C. Res. 1192, U.N. SCOR, U.N. Doc. S/Res/I 192(1998), available at http://www.un.org/docs/scres/1998/sresl 192.htm (last visited Mar. 1, 2002).

10. See Michael P. Scharf, Terrorism on Trial: The Lockerbie Criminal Proceedings, 6 ILSA J.INT'L & COMP. L. 355, 356 (2000). See also Elagab, supra note 2, at 291-94 (Dr. Elagab points out thatthe Security Council demanded that the government of Libya comply with Resolutions 731, 748 and883, making it clear that Libya was the sole subject of these Resolutions.).

II. See S.C. Res. 748, supra note 9, at 1, para. 4; see also U.N. CHARTER, supra note 6, art. 2,

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2002 A RETURN TO LOCKERBIE AND THE MONTREAL CONVENTION 535

The distinction between general directives of the Security Council aimed atcombating international terrorism and specific action taken (e.g., the imposition ofsanctions or authorization of the use of force) in response to individual acts ofinternational terrorism, such as Lockerbie and the September 11 th attacks, is animportant one insofar as attempting to discern a pattern of Security Councilbehavior and decision-making in response to international terrorist attacks.Security Council Resolutions 731 and 748 served to preempt Libya's lawful andtimely claim for provisional measures that would have allowed for ICJ proceedingson the question of extradition in that case without the imposition upon Libya ofUnited Nations Security Council sanctions. 2 Resolutions 883 and 1192 served tofurther strengthen and solidify the terms set forth in Resolutions 731 and 748.13

Libya's argument to the ICJ, grounded in the Montreal Convention, plainlycontended that Libya was not bound to extradite her own nationals in the absenceof a bilateral extradition treaty with either the United States or the UnitedKingdom.' 4 The adoption of United Nations Security Council Resolutions 731,748, 883 and 1192 illustrated the shortcomings of the Montreal Convention indealing with the extradition of state-sponsored terrorists insofar as the principle ofaut dedere aut judicare.'5 The Montreal Convention simply does not addresssituations in which a state is complicitous in a terrorist action.' 6 Furthermore,these Resolutions arguably established a precedent that the Security Council wouldact when necessary, and to the limits of its power, especially when such politicallyinfluential states as the United Kingdom and the United States are involved, tobypass the tenets of the Montreal Convention in situations where a State refuses toextradite her own ostensibly state-sponsored terrorist nationals for trial under thelaws of the State in which the act of terrorism was carried out.17

In the intervening period between the Lockerbie bombing and the eventualextradition of the accused Libyan terrorists to a neutral third-party country, Libyarefused all demands from both the United States and the United Kingdom forextradition of the alleged terrorist pair who were also found to be Libyannationals. 8 In the absence of a bilateral extradition treaty between either Libya

para. 4 (establishing a duty on behalf of all states to not assist or participate in terrorist activities); G.A.Res. 60, U.N. GAOR, 49th Sess., U.N. Doc. AIRES/49/60 (1994), available at http://www.un.org/documents/ga/res/49/a49r060.htm (last visited Mar. 1, 2002); G.A. Res. 210, U.N. GAOR, 51" Sess.,U.N. Doc. A/RES/51/210 (1996), available at http://www.un.org/documents/ ga/res/51/a5Ir2I0.htm(last visited Mar. 1, 2002) (delineating the United Nations General Assembly position on measures toeliminate international terrorism).

12. See Elagab, supra note 2, at 305; see also D'Angelo, supra note 2, at 583-91.13. See S.C. Res. 731 (1992), S.C. Res. 748 (1992), S.C. Res. 883 (1993) and S.C. Res. 1192

(1998), supra note 9.14. See generally Montreal Convention, supra note 3.15. See Elagab, supra note 2, at 296 (stating that the principle of aut dedere autjudicare means

"either surrender or prosecute"); see also Elagab, supra note 2, at 306.16. See generally Montreal Convention, supra note 3.17. See generally S.C. Res. 731, supra note 9, at 1; S.C. Res. 748 supra note 9, at 1; S.C. Res. 883

supra note 9, at 1; S.C. Res. 1192 supra note 9, at 1.18. Compare Zubel, supra note 2, at 260 (commenting that both of the accused, Abdel Basset Ali

lal-Megrahi and Lamen Khalifa Fhimah were Libyan intelligence agents), and S.C. Res. 731 supra

DENV. J. INT'L L. & POL'Y

and the United States, or Libya and the United Kingdom, Libya sought to rely onthe articles of the Montreal Convention pertaining to extradition as the basis of itsargument.' 9 Although there is generally not considered to be any internationalcustomary law pertaining to acts of international terrorism, the MontrealConvention was, and to an extent still is, one of the primary governingConventions of extradition of accused individuals for acts of aerial terrorism. 20

According to Article 7 of the Montreal Convention, in a situation in which anaccused State is in possession of a terrorist accused of acting abroad, the requestedState(s) must either extradite that individual to the requesting State(s), or "[slubmitthe case to its competent authorities for the purpose of prosecution" in accordancewith the appropriate laws of that state.2 1 Furthermore, Article 8 of the MontrealConvention provides that signatory States may consider the Convention itself thelegal basis for extradition in the absence of a bilateral extradition treaty betweenthe requesting and the requested states.22 As there existed no extradition treatiesbetween either the United States and Libya or the United Kingdom and Libya atthe time of the bombings, it follows that Libya had no obligation to extradite itsown nationals under the Montreal Convention.23 Apart from the MontrealConvention, which does not in and of itself establish a principle of internationalcustomary law, there exists no international law requiring a state to extradite. 4

Under well-established principles of international law, no recourse exists onbehalf of the claiming state(s) for failure of the requested State to extradite unlesssuch recourse is authorized by the United Nations Security Council against aUnited Nations member State.25

The Convention is, however, silent on the issue of extradition of a nationalfrom his own state, where that state itself has been shown to have sponsored one of

26their national's alleged terrorist activities. In this sense, the shortcomings of theMontreal Convention are necessarily resolved by United Nations Security Councilaction with the goal of combating threats against the maintenance of internationalpeace and security in accordance with the United Nations Charter.27 The extensiveinvestigation surrounding the Lockerbie case led authorities to the conclusion thatthe terrorists responsible for the bombing were Libyan intelligence agents who hadbeen instructed to blow up Pan Am Flight 103 by individuals directly linked to the

note 9, para. 6 at I (mentioning "investigations which implicate officials of the Libyan Government").19. See Montreal Convention, supra note 3, art 5.20. See generally id. at 1-5; see also Elagab supra note 2, at 301; GEOFF GILBERT, ASPECTS OF

EXTRADITION LAW 8 (1991).21. Montreal Convention, supra note 3, art. 7.22. Id. art.8.23. Elagab, supra note 2, at 296, 300 (Elagab comments that extradition is a "a sovereign decision

of the requested State, which is never under an obligation to carry it out." In this respect, the MontrealConvention does conform to the customary international law as it stood when the Convention wasdrafted and put in force).

24. See Elagab supra note 2, at 300-01; see also GILBERT supra note 15, at 8.25. See Elagab supra note 2, at 301.26. Montreal Convention, supra note 3.27. See U.N. Charter, supra note 6, arts. 39-5 1.

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Libyan government. 28 The United States and the United Kingdom realized thisdeficiency of the Montreal Convention in terms of forcing the extradition of astate-sponsored terrorist from his own country of citizenship, and pursued otheravenues in an attempt to compel Libya to extradite the accused terrorists, namelythrough the levying of sanctions via United Nations Security Council Resolutionspassed under Chapter VII authority.29

Approximately two months after Security Council Resolution 731 was passed,the first such Resolution urging Libya to extradite the alleged terrorists, Libya filedsuit in the ICJ seeking provisional measures to effectively delay or prohibit theimplementation of sanctions by the United Nations until the matter of Libya'sargument per the Montreal Convention was decided.30 The reasoning behind theUnited States and the United Kingdom's strategy to seek a remedy through theSecurity Council was arguably founded in part on the premise established byArticle 25 of the United Nations Charter, which reads: "The Members of theUnited Nations agree to accept and carry out the decisions of the Security Councilin accordance with the Present Charter."31 In effect, the Resolutions passed by theSecurity Council, in accordance with Article 25 of the United Nations Charter,preempted any injunctive action by the International Court of Justice as Libya is apermanent member of the United Nations and therefore bound to adhere to UnitedNations Security Council Resolutions. 32 The ICJ ultimately decided that SecurityCouncil Resolution 748 was determinative on the issues presented in Libya'sarguments, and that Libya therefore was obliged, per Article 25 of the Charter, tocomply with that resolution.33 Additionally, the ICJ held that the Court would notfurther entertain Libya's arguments premised on the Montreal Convention.34

The language of Security Council Resolutions directed towards Libya, whichfollowed Resolution 731, became increasingly intense on the issue of extraditingtheir nationals accused of committing the terrorist acts which led to the downing ofPan Am Flight 103 over Lockerbie. Resolution 748, adopted on March 31, 1992,

28. See Zubel, supra note 2, at 260 (commenting that both of the accused, Abdel Basset Ali lal-Megrahi and Lamen Khalifa Fhimah were Libyan intelligence agents), see also S.C. Res. 731 supranote 9, para. 6, at I (mentioning "investigations which implicate officials of the Libyan Government").

29. See generally S.C. Res. 73 1, supra note 9, at 1; S.C. Res. 748, supra note 9, at 1; S.C. Res.883, supra note 9, at 1; S.C. Res. 1192, supra note 9, at 1.

30. See Case Concerning Questions of Interpretation and Application of the 1971 MontrealConvention Arising From the Aerial Incident at Lockerbie (Libya v. U.K.), 1992 I.C.J. 3, 15 (Apr. 14)[hereinafter Request for Indication of Provisional Measures]. Judges voting in favor of the decisionincluded: Vice President Oda Acting President, President Sir Robert Jennings, Judge Lachs, Judge Ago,Judge Schwebel, Judge Ni, Judge Evensen, Judge Tarassov, Judge Guillaume, Judge Shahabuddeen,and Judge Aguilar Mawdsley. Judges voting against the decision included: Judge Bedjaoui, JudgeWeeramantry, Judge Ranjeva, Judge Ajibola, and Judge as hoc EI-Kosheri., 1992 I.C.J. 3, 32 (Apr. 14)(separate opinion of Judge Shahabuddeen). See also Case Conceming Questions of Interpretation andApplication of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (LibyanArab Jamahiriya v. U.S.), 1998 I.C.J. 115 (Feb. 27) (preliminary objections).

31. See U.N. CHARTER art. 25; see also D'Angelo supra note 2, at 567-77.32. See Elagab, supra note 2, at 305; see also D'Angelo supra note 2, at 583-91.33. See generally Request for Indication of Provisional Measures, supra note 30; Libyan Arab

Jamahiriya v. U.S., supra note 30.34. 1998 I.C.J. 9, 105 (Feb. 27).

DENV. J. INT'L L. & POL'Y

levied sanctions against Libya in consideration of that country's failure to accedeto the repeated requests of the alleged terrorists' extradition by both the UnitedStates and the United Kingdom.35 Security Council Resolutions 883 and 1192further attempted to pressure the Libyan government by demanding compliancewith the previous two Resolutions and strengthening the sanctions against thatcountry.36 With the possibility of seeking recourse in the ICJ gone, internationalpressure increasing, and United Nations sanctions taking their toll, Libyaeventually capitulated to a long-debated plan to have the alleged terroristsextradited to the Netherlands to be tried by a Scottish Court.3 7

III. LOCKERBIE SEPARATE OPINIONS AND DISSENTS:

Disagreement on the Competing Roles of the United Nations Security Council andthe International Court of Justice

The question now raised by Libya's challenge to the validity of resolution 748(1992) is whether a decision of the Security Council may override the legal rightsof States, and, if so, whether there are any limitations on the power of the Councilto characterize a situation as one justifying the making of a decision entailing suchconsequences. Are there any limits to the Council's powers of appreciation? Inthe equilibrium of forces underpinning the structure of the United Nations withinthe evolving international order, is there any conceivable point beyond which alegal issue may properly arise as to the Competence of the Security Council toproduce such overriding results? If there are any limits, what are those limits andwhat body, if other than the Security Council, is competent to say what those limitsare?

If the answers to these delicate and complex questions are all in the negative,the position is potentially curious. It would not, on that account, be necessarilyunsustainable in law; and how far the Court can enter the field is anothermatter.... 38

At the provisional measures 39 stage of the "Case Concerning Questions ofInterpretation and Application of the 1971 Montreal Convention Arising From the

35. S.C. Res. 748, supra note 9, para. 6, at I (indicating that Libya's failure to comply withdemands for extradition constituted a "threat to international peace and security").

36. See S.C. Res. 883 supra note 9, at 1; S.C. Res. 1192 supra note 9, at I; see also U.N.CHARTER art.7, para. 1-2.

37. See Scharf supra note 2, at 357-58 (outlining the specific arrangements involved in theextradition of the then alleged Libyan terrorists to stand trial in the Netherlands before a Scottish panelofjudges).

38. See Request for Indication of Provisional Measures, supra note 30, at 28 (separate opinion ofJudge Shahabuddeen).

39. See STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 41, para. 1-2, available athttp://www.icj-cij.org/icjwww/ibasicsdocuments/ibasictext/ibasicstatute.htm (stating "I. The Courtshall have the power to indicate, if it considers that circumstances so require, any provisional measureswhich ought to be taken to preserve the respective rights of either party. 2. Pending the final decision,notice of the measures suggested shall forthwith be given to the parties and to the Security Council.")

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2002 A RETURN TO LOCKERBIE AND THE MONTREAL CONVENTION 539

Aerial Incident at Lockerbie," eleven ICJ justices voted in favor of the Court's

decision to deny Libya's request for provisional measures, and five ICJ justices

voted against the majority decision.40 Libya's request for provisional measures

were based on that State's contention that the United Kingdom was violating

Articles 5(2), 5(3), 7, 8(2) and 11 of the Montreal Convention, acting to abridge

Libya's rights, and that the United Kingdom was under an international legal

obligation to refrain from doing so.41 In its decision with regard to Libya's

request, the ICJ based its denial of provisional measures in part on the passage of

Security Council Resolution 748, in which the Security Council effectivelyinvoked it's Chapter VII powers and bound Libya to that Resolution, leaving the

majority of the ICJ of the opinion that Libya's request for provisional measureswas then moot.

4 2

While by no means a focus of the work at hand, the issues presented to the

ICJ by Libya's application for provisional measures in light of concurrent SecurityCouncil action was nothing novel. 43 The Lockerbie case has now long served as a

source for commentary regarding the function of the ICJ with respect to the

Security Council, as well as being a source of speculation regarding Security

Council ultra vires actions.44 The Lockerbie case has also been a source ofargument for judicial review of Security Council Resolutions by the ICJ.45

40. See Request for Indication of Provisional Measures., supra note 30.41. See id. at 6-7. See also Montreal Convention, supra note 3, arts. 5, 7, 8 and 11.42. See generally S.C. Res. 748, supra note 9. See also Request for Provisional Measures, supra

note 30, at 15 (stating as one of the reasons in the Order for the Court's denial of Libya's request forprovisional measures, "[w]hereas, furthermore, an indication of the measures requested by Libya wouldbe likely to impair the rights which appear prima facie to be enjoyed by the United Kingdom by virtueof Security Resolution 748 (1992)). See also S.C. Res. 748, supra note 9, para. 5 (The Security Councilinvokes it's Chapter VII powers by stating "(d]etermining in this context that the failure of the LibyanGovernment to demonstrate, by concrete actions its renunciation of terrorism and in particular itscontinued failure to respond filly and effectively to the requests in resolution 731 (1992), constitute athreat to international peace and security...").

43. Request for Indication of Provisional Measures, supra note 30, at 20 (declaration of Judge Ni).44. See generally Jose E. Alvarez, Judging the Security Council, 90 AM. J. INT'L L. 1, 36 (1996)

(stating that a finding of ultra vires action by the Security Council on the part of the International Court

of Justice could have fundamentally changed the UN system of governance); Geoffrey R. Watson,Constitutionalism, Judicial Review, and The World Court, 34 HARV. INT'L L.J. I, 2 (1993); MarcellaDavid, Passport to Justice: Internationalizing the Political Question Doctrine for Application in theWorld Court, 40 HARV. INT'L L.J. 81, 90-91 (1999) (stating that ultra vires Security Council action wasnot at issue in the Lockerbie case, because the International Court of Justice assumed a valid obligation[to the applicable Security Council Resolutions] on the states involved); Richard B. Lillich, The Role ofthe UN Security Council in Protecting Human Rights in Crisis Situations: Un HumanitarianIntervention in the Post Cold War World, 3 TUL. J. INT'L & COMp. L. 1, 12 (1995); D'Angelo, supranote 2, at 586.

45. See generally Takane Sugihara, The Judicial Function of the International Court of Justicewith Respect to Disputes Involving Highly Political Issues, in THE INTERNATIONAL COURT OF JUSTICE,

ITS FUTURE ROLE AFTER FIFTY YEARS 125 (A.S. Muller, D. Raid and J.M. Thurinszky eds., 1997);Malcolm N. Shaw, The Security Council and the International Court of Justice: Judicial Drift andJudicial Function, in THE INTERNATIONAL COURT OF JUSTICE, ITS FUTURE ROLE AFTER FIFTY YEARS

125 (A.S. Muller, D. Raid and J.M. Thur-Anszky eds., 1997); Alain Pellet, Address at the Proceedings ofthe INTERNATIONAL COURT OF JUSTICE/UNITAR Colloquium to Celebrate the 50th Anniversary

of the Court (April 1996), in INCREASING THE EFFECTIVENESS OF THE INTERNATIONAL COURT 234-53

DENV. J. INT'L L. & POL'Y

Building upon other contentious ICJ cases, such as the Hostages case4 6 and theNicaragua case47, the opinions of the ICJ in the Lockerbie case, specificallyLibya's request for the indication of provisional measures, 48 provide importantinsight into the problematic political-judicial dynamic between the Court and theSecurity Council. 49 As evidenced by the circumstances surrounding the Lockerbiecase, both the ICJ and the Security Council can be confronted by the samesituation. However, because of this political-judicial dynamic, the two organs cancome to conflicting decisions - decisions that, despite their political or judicialfoundations, each have distinct judicial and political affects upon the countriesinvolved.50

Given the geopolitical context in which Libya made its request for theindication of provisional measures to the ICJ, the question thus becomes whichorgan should have the power to make the ultimate decisions regarding the rights ofsovereign states where the prevention or punishment of state-sponsoredinternational terrorism is at issue. To that end, this section is not meant by anymeans as a defense to States which sponsor, endorse or espouse internationalterrorist activities or tactics - all of which the author strongly believes to beheinous and deplorable criminal acts. Those individuals or States found guilty ofwhich, deserve the harshest penalties allowed under applicable law. Rather, thissection is meant to pose the political-legal question of what lengths can a SecurityCouncil member State, or States, go in order to legally invoke Security CouncilChapter VII powers without encroaching upon the sovereign rights of the Stateaccused of sponsoring acts of international terrorism.

As illustrated by the Lockerbie case, when situations of alleged state-sponsored terrorism are involved and the Security Council invokes its Chapter VIIpowers, the possibility for conflict between the Security Council and the ICJbecomes troublesome. As was stated in the Court's ruling in the Nicaragua case:

(Connie Peck and Roy S. Lee eds., 1997); Vera Gowlland-Debbas, Address at the Proceedings of theINTERNATIONAL COURT OF JUSTICE/UNITAR Colloquium to Celebrate the 5 0

h Anniversary ofthe Court (April 1996), in INCREASING THE EFFECTIVENESS OF THE INTERNATIONAL COURT 254-66(Connie Peck and Roy S. Lee eds., 1997); Ken Roberts, Second-Guessing the Security Council: TheInternational Court of Justice and Its Powers of Judicial Review, 7 PACE INT'L L. REV. 281 (1995);John Quigley, The United Nations Security Council: Promethean Protector or Helpless Hostage, 35TEX. INT'L L.J. 129 (2000); Alvarez, supra note 44; Mcginley, supra note 2; D'Angelo, supra note 2;Watson, supra note 44; Gowlland-Debbas, supra note 2.

46. See generally United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980I.C.J. 3 (May 24) [hereinafter the Hostages case].

47. See generally Military and Paramilitary Activities (Nicar. v. U.S.) (Merits), 1986 1.C.J. 14(June 27) [hereinafter the Nicaragua Case].

48. See generally Request for the Indication of Provisional Measures, supra note 33.49. See Shaw, supra note 45, at 243 (citing the Courts decision in the Nicaragua case, supra note

47 at 435, Shaw includes the following quote: "the Council has functions of a political nature assignedto it, whereas the Court exercises purely judicial functions. Both organs can therefore perform theirseparate but complementary functions with respect to the same events.").

50. See Sugihara, supra note 45, at 126; Shaw, supra note 45, at 232-36. See also Alvarez, supranote 44, at 10 (stating that some have criticized Security Council actions as amounting to "'quasijudicial "'actions).

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[u]ntil the Security Council makes a determination under Article 39, a disputeremains to be dealt with by the methods of peaceful settlement provided underArticle 33, including judicial settlement; and even after a determination underArticle 39, there is no necessary inconsistency between Security Council actionand adjudication by the Court. From a juridical standpoint, the decisions of theCourt and the actions of the Security Council are entirely separate.5 1

While Security Council resolutions and decisions of the ICJ pertaining to thesame issue may not be mutually exclusive, it has been hypothesized that Securityaction may actually infringe upon the rights of a sovereign state. As illustrated bythe Lockerbie case, the Council invoked it's Chapter VII powers in Resolution 748.From one perspective, thus blocked Libya from obtaining the imposition ofprovisional measures against the United Kingdom in the International Court ofJustice pursuant to the Montreal Convention. 52 This perspective appears as arecurring theme throughout the Separate Opinions and Dissents of the five judgeswho voted against the International Court's Order with regard to Libya's requestfor the indication of provisional measures. 53 A survey of several of these separateopinions and dissents serve as an appropriate framework from which to discerncompeting arguments and begin to form some hypotheses with regard to the futureinvocation of Chapter VII powers by the Security Council in order to combat state-sponsored international terrorism.

Judge Lachs' separate opinion, the first and shortest opinion to be appendedto the Court's Order, perhaps speaks most clearly to the multifaceted questionsbeing broached by this article. In calling for harmonious action between the twoentities of the United Nations which "[hlave the delivery of binding decisionsexplicitly included in their powers under the Charter," Judge Lachs comments that"[i]t [the International Court of Justice] is its [international law's] principleguardian. Now, it has become clear that the dividing line between political andlegal disputes is blurred, as law becomes ever more frequently an integral elementof international controversies.

54

While couched in very diplomatic wording calling for cooperation betweenthe Security Council and the International Court of Justice, Judge Lach's mostimportant commentary is that concerning the dichotomy between that which is

51. See supra note 45, at 125 (citing to the Nicaragua case). See also U.N. Charter, art. 39 supranote 6; U.N. Charter, art. 33 supra note 6 (Article 33 of the UN Charter reads as follows: "I. Theparties to any dispute, the continuance of which is likely to endanger the maintenance of internationalpeace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation,arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means oftheir own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settletheir dispute by such means.").

52. See S.C. Res. 748, supra note 9. See also Request for the Indication of Provisional Measures,supra note 30, 3-16.

53. See Request for the Indication of Provisional Measures, supra note 30, at 26-112(separate/dissenting opinions of Judges Bedjaoui, Weeramantry, Ranjeva, Ajibola and Judge ad hoc El-Kosheri).

54. See Request for the Indication of Provisional Measures, supra note 30, at 26-28 (separateopinion of Judge Lachs).

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political (the role of the Security Council) and that which is legal (the role of theInternational Court of Justice).

In terms of the Lockerbie case, and issues of state-sponsored terrorismgenerally, the distinction is of paramount importance. As the more states arelabeled "sponsors of terrorism," the more these two competing roles will clash. Asopposed to merely seeking to punish individual perpetrators of terrorist acts, it hasbecome apparent post-September 11 th that States and their respective regimesaccused of sponsoring terrorism will also be likely targets of action resulting frominitiatives taken under Security Council Chapter VII powers. Building upon thequotation included at the beginning of this section, how will the Security Councildeal with accused States' legal challenges brought under any number of treaties towhich both the accused State and the accuser State are parties? Will that in turnprovide for actions contrary to those sanctioned by the Security Council underChapter VII?

Judge Bedjaoui's dissenting opinion55 also maintains a focus on the political-legal dichotomy between the roles of the Security Council and the InternationalCourt of Justice, referring to a creation of a "'[g]rey area' in which powers mayoverlap and a jurisdictional conflict comes into being. ' '56 Judge Bedjaoui eludes toone of the underlying dilemmas in this so-called "grey area" when he includesquotes from the dissenting opinion of Judge Gros in the case of the LegalConsequences for States of the Continued Presence of South Africa in Namibia(South West Africa):

'[c]ertain 'limitations on the powers of the Security Council are necessary becauseof the all too great ease with which any acutely controversial internationalsituation can be represented as involving a latent threat to peace and security, evenwhere it is really too remote genuinely to constitute one. Without theselimitations, the functions of the Security Council could be used for purposes neveroriginally intended ... [There was] no threat to peace and security other than suchas might be artificially created as a pretext for the realization of ulteriorpurposes.'57

The question is thus reiterated: to what lengths can member state(s) of theSecurity Council go to politically pursue an issue of international concern (asopposed to a genuine threat to international peace and security which would givethe Security Council leave to invoke its Chapter VII powers), despite legal avenuesin place provided for in treaties to which the states at hand are both parties?Additionally, to what lengths can accused States pursue legal action in theInternational Court of Justice before the Security Council in essence ties that

55. See generally Request for the Indication of Provisional Measures, supra note 30, at 33-49(dissenting opinion of Judge Bedjaoui).

56. Id. at 35.57. Legal Consequences for States of the Continued Presence of South Africa in Namibia

(Southwest Africa) Notwithstanding Security Council Resolution 276 (1970) (S. Afr. v. Namib), 1971ICJ 16 (June 21) (dissenting opinion of Judge Bedjaoui; dissenting opinion of Judge Gros, quoted inRequest for the Indication of Provisional Measures, supra note 30).

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State's hands with binding action under Chapter VII authority?

In response to recent events of global state-sponsored terrorism, the author'sanswer should come as no surprise. As Judge Bedjaoui states in his dissent:

[t]he most that can be said is that if the person that committed the offense acted asthe organ of a State, the [Montreal] Convention could prove to be, notinapplicable, but rather ineffectual to the extent that the state that would opt notfor extraditing but for prosecuting the suspects itself, which, obviously, would notbe a satisfactory solution. 58

The Montreal Convention is indeed an ineffective means of dealing withstate-sponsored terrorism generally, not to mention the extradition of state-sponsored terrorists from their homeland. As stated in the Security Council's mostrecent resolutions on the subject, terrorism, in all forms, poses a threat tointernational peace and security - a threat of such extreme proportions, which ifproven, should be combated in the political sphere by the international communitywith whatever means necessary. 59 The Security Council, if not the internationalcommunity at large, has opted for Chapter VII-authorized political solutions overmore time-consuming legal alternatives °60

IV. UNITED NATIONS SECURITY COUNCIL REACTIONS TO THE TERRORIST ACTS OFSEPTEMBER 1 ITH

The day after the September 11 th attacks, the United Nations SecurityCouncil passed Resolution 1368 (2001).61 While Resolution 1368 espoused anappropriate level of outrage in response to the terrorist events that transpired theday before, it in essence constitutes a more strongly worded restatement ofResolution 1269 (1999), which stopped short of referring to international acts ofterrorism as a threat to international peace and security. 62 Seventeen days after theSeptember 11 th terrorist attacks against the United States, the Security Counciladopted Resolution 1373 (200 1).63 An analysis of Resolution 1373 reveals that itprovides for the freezing of assets linked to terrorists, terrorist organizations, orstates supporting the activities of terrorists.64 This built-in sanction againstterrorist organizations and the states or entities that provide them with supportseemingly represents a building upon the sanctions lodged against Libya after theLockerbie bombing. Incorporating Security Council Resolutions 1269 andResolution 1368 in name and substance, article 1, paragraph (d) of Resolution

58. Request for the Indication of Provisional Measures, supra note 30 at 37 (dissenting opinion ofJudge Bedjaoui).

59. See S.C. Res. 1373, U.N. SCOR, 56' Sess., U.N. Doc. S/RES/1377 (2001), para. 3; See alsoS.C. Res. 1377, U.N. SCOR, 56'h Sess., U.N. Doc. S/RES/1377 (2001), para. 7.

60. See S.C. Res., supra note 59.61. See S.C. Res. 1368, U.N. SCOR, 56"h Sess., U.N. Doc. S/RES/1368 (2001).62. See S.C. Res. 1269, U.N. SCOR, 54"' Sess., U.N. Doe. S/RES/1269 (1999).63. S.C. Res. 1373, supra note 59, at 1-5.64. Id. at 2 (note use of the positive term "shall" as opposed to more ambiguous term

characteristic of other United Nations' documentation regarding terrorism).

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1373 speaks directly to the international dilemma of state sponsored terrorism:

Acting under Chapter VI of the Charter of the United Nations, Decides that allStates shall... Prohibit their nationals or any persons and entities within theirterritories from making any funds, financial assets or economic resources...available.., for the commission of terrorist acts...65

Additionally, article 3, paragraph (c) and (d) call upon all States to"[c]ooperate, particularly through bilateral and multilateral arrangements andagreements.. ." and to "[i]ncrease cooperation and fully implement the relevantinternational conventions and protocols relating to terrorism and Security CouncilResolutions 1269 (1999) and 1368 (200l).y ' 66 As stated above, Resolutions 1373,1377 (2001), 1378 (2001), 1383 (2001), 1386 (2001) and 1390 (2001), SecurityCouncil Resolutions 1269 and 1368 perpetuate the contradictory dichotomybetween the calling upon states to cooperate in and implement international anti-terrorist conventions while simultaneously expressing the Security Council's"readiness to take all steps necessary to respond to the terrorist attacks of 11September 2001, and to combat all forms of terrorism, in accordance with itsresponsibilities under the Charter of the United Nations...

Read in conjunction with Security Council Resolutions 731, 748, 883 and1192, there is a discernable philosophical pattern regarding how the SecurityCouncil intends to treat state-sponsored terrorist incidents. 6 This evolving patternof both philosophy and proposed action (viewed together with Security Councilsteps taken in response to the Lockerbie bombing) may indeed signify acrystallization process of international customary law regarding internationalresponses to state-sponsored terrorism in general, and necessarily the extradition ofnationals from a state proven to be a sponsor of that national's terrorist activities.It is also apparent that with it's acknowledgement of state-sponsored terrorism inResolution 1373, the Security Council may no longer view the reliance upon, orformulation of a requested state's defense based upon, the provisions set forth inthe Montreal Convention as applicable to extradition proceedings where a nationalof a terrorist-sponsoring state is sought to be extradited for alleged terroristactivities.

V. CONCLUSION

United Nations Security Council Resolutions 731, 748, 883 and 1192 set aprecedent for the avoidance of having to negotiate the jurisdictional quagmireposited by the Montreal Convention. Rather, via Article 24 of the United NationsCharter, the Security Council can formulate resolutions that take precedence overwell-established multilateral treaties. This fact leaves United Nations Member

65. S.C. Res. 1373, supra note 59, at 2.66. Id. at art.3.67. See generally S.C. Res. 1269, supra note 62; S.C. Res. 1368, supra note 61.68. See generally supra note 9, at 1-5; S.C. Res. 731, supra note 9, at 1; S.C. Res. 748 supra note

9, at 1; S.C. Res. 883 supra note 9, at 1; S.C. Res. 1192 supra note 9, at I.

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States with little or no recourse in the International Court of Justice, as exemplifiedby the plight of Libya in the wake of the Lockerbie bombing. 69 Security CouncilResolution 1373 and its progeny further enforce the precedent established bySecurity Council Resolutions 731, 748, 883 and 1192. Resolution 1373 appears todeny terrorist-sponsoring states the right to prosecute their accused nationals athome, despite a call for States to "[i]ncrease cooperation and fully implement therelevant conventions and protocols relating to terrorism.. .,,.70 In light of thethreats of international terrorism, the continued investigation of the September11 th attacks and an analysis of future Security Council action will likely be highlydeterminative in the possible crystallization of customary international lawregarding international responses to transborder acts of terrorism, inclusive of theextradition of alleged terrorist nationals seeking refuge in their own terrorist-sponsoring countries.

The United Nations Security Council, in light of both the bombing atLockerbie and the attacks of September 1 th, is in essence doing away with theneed for international anti-terrorism conventions, such as the MontrealConvention. These anti-terrorist conventions are meant to foster cooperationbetween states in matters regarding acts of international state-sponsored terrorism.The principle of international law that States are not obliged to extradite their ownnationals, aut dedere aut judicare, is seemingly at odds with the currentconventions on terrorism if the requested government in question itself supportsterrorist activities of the nationals accused. Under the guise of combating andpreventing international acts of terror, the precedent being set by the UnitedNations Security Council is that a State can levy sanctions, use military force, ormerely enter an accused country and take the individuals sought in connection withterrorist acts; thus bypassing the conventions already in place as well as theprinciple of state sovereignty with regard to the extradition of accused internationalterrorists. Yet, when an accused terrorist-sponsoring State seeks legal relief in theInternational Court of Justice as prescribed by treaties to which all states areparties, there is no obligation to adhere to the treaty in light of binding SecurityCouncil action taken under Chapter VII authority.

Adopted in the intervening period between the Lockerbie bombing and theterrorist events of September 11, 2001 in the United States, Security CouncilResolution 1269 has served as the foundation for the Security Council's mostrecent actions taken in response to international terrorism. 71 Resolution 1269establishes a dichotomy - which begins to customarily appear in subsequentSecurity Council resolutions regarding international terrorism - between the role ofthe Security Council as the champion and protector of the principles of the UnitedNations Charter and the body's role as an encouraging facilitator among memberStates in the implementation of international conventions.

Accordingly, Resolution 1269 states in part that the Security Council is

69. See U.N. CHARTER, supra note 6, art. 24.70. See generally S.C. Res. 1373, supra note 59.71. S.C. Res. 1269, supra note 67.

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"[d]etermined to contribute, in accordance with the Charter of the United Nations,to the efforts to combat terrorism in all its forms. . ." Yet in a preceding clause, theSecurity Council supports "[t]he efforts to promote universal participation in andimplementation of the existing international anti-terrorist conventions, as well asto adopt new international instruments to counter the terrorist threat...,7 If thesetwo roles of the Security Council are in fact mutually-exclusive, it stands to reasonthat international law fostered by the Security Council, if not the internationalcommunity in its entirety, is both conflicted and confounded. This confusionregarding the implementation of action by the Security Council, namely whetherthe Security Council will act in an arguably ultra vires capacity or in accordancewith standing international anti-terrorism conventions, has affected both thepolitical and legal aspects of the extradition of alleged international terrorists.

In the wake of the September 1 th terrorist attacks in the United States, theUnited Nations Security Council built upon Resolutions 731, 748, 883, 1192 and1269 by adopting Resolutions 1368 , 1373 , 1377 , 1378 , 1383 , 1386 , andResolution 1390 . Security Council Resolution 1373 calls for the implementationof positive and definitive action regarding the prevention of terrorism and thepunishment of any individual, entity, or state which has a hand in assisting,financing, or committing an act of terrorism. 74 In light of Resolution 1269,Security Council Resolution 1373, albeit indirectly, further calls into question theability of the Montreal Convention to govern the extradition of international state-sponsored terrorists. It does so by simultaneously and confusingly referring to theprinciples of the United Nations Charter while calling upon states to implementtreaties applicable to acts of international terrorism.75

72. S.C. Res. 1269, supra note 67, at para- 5.73. Security Council Unanimously Adopts Wide-Ranging Anti-Terrorism Resolution; Calls for

Suppressing Financing, Improving International Cooperation, supra note 1, at 2;74. See id.75. Id. at 2-5.

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